Jimmy Malo v. M. Hernandez

MEMORANDUM

Jimmy Simeona Malo, a former California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth and Fourth Amendment claims arising from a visual body cavity search. We .have jurisdiction under 28 U.S.C. § 1291 . We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.

The district court properly dismissed Maio’s Eighth Amendment claims because Malo failed to allege facts sufficient to show that defendants were deliberately indifferent to Maio’s health or safety. See Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (to establish deliberate indifference, an inmate must demonstrate that the official was aware of a risk and deliberately disregarded the risk).

The district court properly dismissed Maio’s Fourth Amendment claim on the basis of qualified immunity because it would not have been clear to every reasonable official that defendants’ conduct was unconstitutional. See Plumhoff v. Rickard, - U.S. -, 134 S.Ct. 2012, 2023 , 188 L.Ed.2d 1056 (2014) (officials sued under § 1983 are entitled to qualified immunity…